$20 IM^0KTA^'T action respecting a whale, [app. n° v. 



in order that they might not be said to hiave abandoned their 

 right. William Keld, the harpooner, distinctly proved 

 llie facts stated by Mr Solicitor-General. He said the whale, 

 as soon as he struck her. ran out five lines, amounting to 650 

 fathom, or 1300 yards ; the lines were fastened to the boat, 

 and they gave the boat for the safety of the fish ; they got 

 upon the ice, and made the usual signal ; the boats of both 

 ships came up, and in about three quarters of an hour the 

 whale rose, and the Experiment's boats struck her. 



On his cross examination, he said, it was not for the crew 

 to remain in the boat ; if they had, the whale would have 

 given them a journey under the sea. 



Lord Ellenbouough observed, that the question was re- 

 duced to the mere title to the boat. As to the whale, the oc- 

 cupancy was gone. The crew of the Neptune''s boat had 

 ceased to hold the fish ; and they could not be said to hold it 

 more, because the boat was attached to the line, than if any 

 other weight had been affixed to it. He was of opinion, that 

 the harpoon and other things used as instruments of chase, 

 might be cast away in the adventure. A man who wounded 

 a bird, which another afterwards killed, might as well claim 

 the shot. 



Mr Ekskine said, that after what had fallen from his 

 Lordship, it Avas not necessary for him to enter fully into the 

 subject. He was persuaded his Lordship would not suffer a 

 custom to be violated, which had been over and over again 

 established, more especially after it had been observed by a 

 learned Judge (Buller), that as the subjects of all nations 

 were engaged in the fishery of these seas, it would be highly 

 inconvenient for the courts of one nation, to alter the general 

 custom established by all. The doctrine had even gone the 

 length of saying, that after a whale had been killed, brought 

 alongside a ship, and the operation of flensing, or cutting out 

 the blubber, had commenced, if a sea came and washed her 

 away, she became what was called a loose fish, and any ves- 

 sel might take her. He referred to the oim. con. cause tried 

 ifome years ago, in which he had elucidated the subject in dis- 



